Citation Nr: 0026357
Decision Date: 09/29/00 Archive Date: 10/04/00
DOCKET NO. 94-04 745 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUE
Entitlement to an increased rating for a left shoulder
disability (minor), currently rated at 20 percent, to include
the issue of entitlement to an extraschedular rating under 38
C.F.R. § 3.321 (1999).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Ferrandino, Associate Counsel
INTRODUCTION
The veteran had active service from March 1955 to September
1957 with additional unverified service in the reserves.
By rating decision in August 1989, service connection was
granted for residuals of fracture of the left humerus. In
August 1992, the veteran filed a claim for an increased
rating for his service connected disability. This appeal
arises from the August 1993 rating decision from the New
York, New York Regional Office (RO) that denied the veteran's
claim for an increased rating for a left shoulder disability.
A Notice of Disagreement was filed in August 1993 and a
Statement of the Case was issued in November 1993. A
substantive appeal was filed in November 1993 with a request
for a hearing at the RO before a local hearing officer. In
October 1994, the abovementioned RO hearing was held.
By decision of the Board in March 1996, an increased rating
for a left shoulder disability, currently evaluated at 10
percent, was denied. This decision was appealed to the
United States Court of Appeals for Veterans Claims (known as
the United States Court of Veterans Appeals prior to March 1,
1999) (hereinafter, "the Court"). While the appeal was
pending, the veteran's representative and the Office of
General Counsel for VA, who represents the Secretary of the
Agency filed a joint motion requesting that the Court vacate
the decision by the Board and remand the case for additional
development of the evidence and readjudication of the claim.
The Court granted the joint motion in December 1996 and the
case was returned to the Board for compliance with the
directives that were specified by the Court. This case was
thereafter remanded in September 1997 for further
development.
In June 2000, the RO increased the evaluation for the
veteran's service connected residuals of a fracture of the
left humerus with deformity from 10 percent to 20 percent,
effective from August 28, 1992. The veteran has continued
his appeal of the 20 percent rating.
REMAND
The veteran contends that the RO erred by failing to grant
the benefits sought on appeal. He has thus stated a well-
grounded claim for an increased rating. A claim for an
increased evaluation is well grounded if the claimant asserts
that a condition for which service connection has been
granted has worsened. Proscelle v. Derwinski, 2 Vet. App.
629, 632 (1992).
In reviewing the record, the undersigned notes that in the
September 1997 Remand, it was indicated that a VA examination
for rating purposes that addresses the requirements of DeLuca
v. Brown, 8 Vet. App. 202 (1995) should be provided. This
was not done in the latest VA examination in February 1999.
In DeLuca v. Brown, the Court held that in evaluating a
service connected disability involving a joint, functional
loss due to pain under 38 C.F.R. § 4.40 and functional loss
due to weakness, fatigability, incoordination, or pain on
movement of a joint under 38 C.F.R. § 4.45 must be
considered. The Court also held that the functional loss, if
feasible, should be determined by reference to additional
range of motion loss. It was explained that the diagnostic
codes pertaining to range of motion do not subsume 38 C.F.R.
§ 4.40 and § 4.45 and that the rule against pyramiding set
forth in 38 C.F.R. § 4.14 did not forbid consideration of a
higher rating based on a greater limitation of motion due to
pain on use, including during flare ups. The veteran has
indicated he has pain on use of his left shoulder.
Therefore, the veteran should be afforded an orthopedic
examination to address the DeLuca requirements.
In addition, at the October 1994 RO hearing, the veteran
complained of weakness, radiating pain, and numbness of the
left hand; therefore, the RO should order a neurological
examination to determine whether the left shoulder disability
causes any neurological impairment. If so, information is
needed as to the nerve affected and the manifestations and
severity thereof, and consideration should be given as to
whether a separate rating is warranted based on such
impairment. If not, clarification is needed as to which
manifestations are attributable to the service connected left
shoulder disability as opposed to any co-existing but
unrelated disabilities.
The undersigned notes that there is an administrative
decision from the Social Security Administration (SSA) from
February 1998, denying Social Security disability benefits.
The VA must obtain a copy of the medical records upon which
the Social Security Administration (SSA) decision denying
benefits to the veteran was based. Murincsak v. Derwinski, 2
Vet. App. 363 (1992).
The veteran indicated that he has had treatment at the Fort
Hamilton VA Medical Center. Current treatment records from
this facility should be requested prior to the VA
examinations. VA has a duty to assist the veteran in the
development of facts pertaining to this claim. The Court has
held that the duty to assist the claimant in obtaining and
developing available facts and evidence to support his claim
includes obtaining all relevant medical records. Littke v.
Derwinski, 1 Vet. App. 90 (1990).
The veteran contended at the October 1994 RO hearing that his
service connected left shoulder disability has interfered
with his employment. In this regard, the RO appears to have
considered the issue of entitlement to an extraschedular
evaluation pursuant to 38 C.F.R. § 3.321(b)(1) in the June
2000 Supplemental Statement of the Case. The Board notes,
however, that there is no evidence that the RO requested the
veteran to submit evidence in support of his claim for an
extraschedular rating.
The veteran's attention is directed to the following
regulations.
Sec. 3.655 Failure to report for
Department of Veterans Affairs
examination.
(a) General. When entitlement or
continued entitlement to a benefit cannot
be established or confirmed without a
current VA examination or reexamination
and a claimant, without good cause, fails
to report for such examination, or
reexamination, action shall be taken in
accordance with paragraph (b) or (c) of
this section as appropriate. Examples of
good cause include, but are not limited
to, the illness or hospitalization of the
claimant, death of an immediate family
member, etc. For purposes of this
section, the terms examination and
reexamination include periods of hospital
observation when required by VA.
(b) Original or reopened claim, or
claim for increase. When a claimant
fails to report for an examination
scheduled in conjunction with an original
compensation claim, the claim shall be
rated based on the evidence of record.
When the examination was scheduled in
conjunction with any other original
claim, a reopened claim for a benefit
which was previously disallowed, or a
claim for increase, the claim shall be
denied.
38 C.F.R. § 3.655 (1999).
Accordingly, the case is REMANDED to the RO for the
following:
1. The RO should contact the veteran and
obtain the names and addresses of all
health care providers where he has
received treatment for the service
connected left shoulder disability since
1992. Thereafter, the RO should obtain
legible copies of all records that have
not already been obtained. The records
requested should include those from the
Fort Hamilton VAMC.
2. The RO should contact SSA and obtain
legible copies of the medical records
used in the decision that denied
disability benefits to the veteran. All
records must be associated with the
claims folder.
3. Following completion of the above
action, the veteran should be afforded VA
orthopedic and neurological examinations
to determine the current severity of the
service connected left shoulder
disability. The RO should ensure that
the notice of the examinations is sent to
the veteran's current address. The
claims folder must be made available to
the examiners prior to the examinations.
All necessary diagnostic testing should
be done to determine the full extent of
all disability present. All disability
should be evaluated in relation to its
history with emphasis on the limitation
of activity and functional loss due to
pain imposed by the disability at issue
in light of the whole recorded history.
The orthopedic examiner should provide
complete range of motion in degrees for
the left shoulder. For VA purposes,
normal shoulder forward elevation
(flexion) is from 0 to 180 degrees,
normal shoulder abduction is from 0 to
180 degrees, normal shoulder external
rotation is from 0 to 90 degrees and
normal shoulder internal rotation is from
0 to 90 degrees. 38 C.F.R. Part 4,
§ 4.71, Plate I (1999). If the veteran
has disability of the upper extremity or
cervical spine which is not a
manifestation of the service connected
left shoulder disability, the examiner
should try to distinguish, if possible,
those manifestations referable to the
service connected disability from those
attributable to co-existing but unrelated
disabilities. The examiner should
determine whether there is any pain,
weakened movement, excess fatigability,
or incoordination on movement, and
whether it is at least as likely as not
that there is or may be additional range
of motion loss or ankylosis of the
service connected left shoulder
disability due to any of the following:
(1) pain on use, including flare ups; (2)
weakened movement; (3) excess
fatigability; or (4) incoordination. The
above determinations must, if feasible,
be expressed in terms of the degree of
additional range of motion loss due to
pain on use or during flare ups under §
4.45. If there is functional ankylosis,
the position in degrees should be given.
If it is not feasible to make any
determination, the examiner should so
note and give the reasons.
Additionally, on a VA x-ray in June 1993,
it was indicated that the veteran had
arthritis of the left shoulder. At the
February 1999 VA examination, arthritis
was not demonstrated. These records
should be reviewed and, if needed,
additional x-rays should be provided to
determine whether the veteran has
arthritis of the left shoulder. If any
such testing is not provided, the
rationale should be noted.
If the examiner is unable to make any
determination, it should be so indicated
on the record. The factors upon which
any medical opinion is based should be
set forth for the record.
The examiner should additionally be asked
to comment on the functional limitations
due solely to the veteran's service-
connected left shoulder disability.
Functional limitations should be
described with as much specificity as
possible. The examiner should comment on
the presence or absence of fascial
defects, atrophy, impaired muscle tone,
loss of power, and lowered fatigue
threshold. The examiner should note
whether there is recurrent dislocation of
the humerus at the scapulohumeral joint.
If so, it should be noted whether such
episodes are frequent or infrequent and
whether there is guarding of movement
only at the shoulder level or guarding of
all arm movements. The examiner should
note also note whether there is malunion
of the humerus; and, if so, is it
productive of slight, moderate or marked
deformity.
The neurological examiner should
determine whether it is at least as
likely as not that the veteran has any
neurological manifestations referable to
the service connected left shoulder
disability. (The underlined standard of
proof should be utilized in formulating a
response.) If so, all such
manifestations should be described in
detail, and the nerve(s) affected and
severity thereof should be indicated. If
not, the manifestations of any unrelated
neurological disability should be
dissociated, if feasible, from the
disabilities at issue. All factors upon
which any medical opinion is based must
be set forth for the record.
4. The RO should inform the veteran of
the elements of a claim for an
extraschedular evaluation under 38 C.F.R.
§ 3.321(b)(1). The veteran should be
asked to furnish employment records
verifying that he experiences marked
interference with employment or that he
has had frequent periods of
hospitalization due to his service
connected left shoulder disability. This
evidence may include records pertaining
to lost time or sick leave used due to
the left shoulder disability, any
correspondence from an employer that
would verify his contentions, or medical
records showing periods of
hospitalization.
5. The RO should consider whether the
criteria for submission for assignment of
an extraschedular evaluation for service
connected left shoulder disability
pursuant to 38 C.F.R. § 3.321(b)(1) are
met. If such criteria are met, then the
matter should be referred to the
Undersecretary for Benefits or the
Director of the Compensation and Pension
Service for appropriate action. If the
determination is adverse to the veteran,
he and his representative should be
furnished with a supplemental statement
of the case which includes a summary of
any additional evidence submitted, any
applicable laws and regulations, and the
reasons for the decision. The veteran
and his representative should be afforded
an opportunity to respond.
6. After completion of the requested
development, the RO should review the
veteran's increased rating claim for a
left shoulder disability on the basis of
all the evidence of record. If the
action taken remains adverse to the
veteran in any way, he and his
representative should be furnished an
appropriate supplemental statement of the
case. If the veteran fails to appear for
the examination, the RO should consider
and discuss 38 C.F.R. § 3.655. If this
is the case, the RO should include a copy
of the notification letter in the claims
file as to the date the examination was
scheduled and the address to which
notification was sent. The veteran and
his representative should then be
afforded an opportunity to respond.
Thereafter, the case should be returned to the Board, if in
order. The appellant has the right to submit additional
evidence and argument on the matter or matters the Board has
remanded to the regional office. Kutscherousky v. West, 12
Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
Iris S. Sherman
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).
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